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A recent 7^th Circuit Court of Appeals ruling limits USERRA scheduling provisions for National Guard Members nationwide.

 

Under the USERRA or Uniformed Services Employment and Reemployment Rights Act, employers must allow members of the military to take time off for National Guard duty and training. Other provisions of the USERRA apply to employees or former employees on active military duty.

 

The law also requires that employers prominently display a USERRA poster, even when they have no employees who are covered under the law.

 

The lawsuit involved the city of Mount Vernon, Illinois. Several city police officers were also National Guard members. In the past, the city allowed the officers to use their vacation, sick or personal leave for National Guard training. This allowed the police officers to collect their full city salary, plus military pay, for the days they were away with the National Guard.

 

In addition, in the past Mt. Vernon allowed National Guard members to rearrange their work schedules when they conflicted with military obligations. By “bumping” other employees, a National Guard member could arrange his or her days off so that on National Guard weekends, the employee received full pay from both the city and the military, without using any vacation time. In effect, the employees were being paid twice for those weekends.

 

The National Guard employees were also permitted to reschedule themselves off on weekends, even when another employee had long requested the weekend off for a wedding or other special event.

 

Employers should note that by law, the employer must give the National Guard employee time off to attend required training. Time off was never the issue in this case – the issue was whether the employee would have to use a sick or vacation day in order to be paid twice for National Guard duty.

 

In 2006, the city of Mt. Vernon reversed this policy and although the city still gave National Guard members the time off, they were required to take it unpaid or to use a vacation day. One of the officers sued the city, claiming that the policy change was a violation of the USERRA.

 

The court granted summary judgment to the city. The appeals court upheld that summary judgment.

 

In its decision, the 7^th Circuit Court of Appeals noted that the USERRA requires employers to offer the same benefits to National Guard (and active military) members as to other employees. However, the USERRA does not require employers to grant special privileges or benefits to members of the military. The court ruled that even though the city had given preferential treatment to National Guard members in the past, eliminating that policy was lawful under USERRA.

 

Under USERRA, members of the military are still entitled to reinstatement after their service ends. In addition, they are entitled to the benefits and promotions that they would have received, if they had still been on the job.

 

 

 

 

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